Care Sector Case Law Update October 2024
24th October, 2024
In October our care sector employment specialists looked at some of the key cases that employers should be aware of
Ms M Ceriaco v Hazelwell Care Home Ltd [2024] – disability discrimination
The Claimant was a Senior Care Assistant who was contracted to work 48 hours per week as four twelve hour shifts. She suffered from fibromyalgia. After reaching 183 days of absence due to this condition it was agreed that her hours would be reduced to 30 per week, five six hour shifts. A variation letter was signed documenting this.
3 months later, when discussing return to work after a further period of absence, the Home made it clear that they wanted her to return to work on her original contract of 48 hours per week. The Claimant saw this as an ultimatum and felt that this was being imposed notwithstanding the fact that the Home had a medical report which recommended that the Claimant did not overdo it and paced herself.
A further Occupational Health report was obtained 3 months later. It said that the Claimant was not fit to work and return to work date could not be predicted. A phased return to work was recommended however but the Home was made aware that further absences may occur due to the nature of the condition. The Claimant was dismissed later that month on the basis that the impact of her absences was too great on the Home and an ill health dismissal was the only option.
The Claimant brought an Employment Tribunal claim for failure to make reasonable adjustments and discrimination arising from disability. The failure to make reasonable adjustments claim was upheld on the basis that continuing the 30 hour per week contract was reasonable and the Tribunal held that the decision to dismiss the Claimant was an act of discrimination arising from disability. The Claimant was awarded compensation of nearly £21,000 of which £16,000 was injury to feelings.
Failing to put in place reasonable adjustments can be a costly exercise and this often arises in cases of prolonged sickness absence. While it isn’t necessary to make every adjustment sought by an employee, consideration does need to be given to what is and isn’t reasonable and how the company can support the employee.
Newman & Ors v (1) Rollandene and (2) Mansfield Care [2024] – TUPE
This claim arose from the closure of a care home by Rollandene. The home had a mix of privately and publicly funded residents but all of the residents transferred to two homes operated by Mansfield Care. In comparison, Mansfield only accepted the transfer of one third of Rollandene’s staff which resulted in the displaced staff bringing claims against both Rollandene and Mansfield.
Amongst other claims, the Claimants sought protective awards for a failure to consult on collective redundancies contrary to s.188 Trade Union and Labour Relations (Consolidation) Act 1992 (TURLCA). Rollandene argued that there had been a relevant TUPE transfer to Mansfield and therefore no redundancy situation could have arisen under s.188. Their alternative position was that the obligation to consult had not been triggered under s.188 because there were less than 20 employees involved at the relevant time once bank staff had been discounted.
Mansfield’s position was that no TUPE situation had arisen. In the alternative, they agreed that the minimum number of employees required for collective redundancy consultation was not met.
The Employment Tribunal held that the fact that the residents were both privately and publicly funded resulted in two TUPE transfers. With regard to the private residents, there had been a business transfer but the transfer of local authority funded residents caused a service provision change.
The Tribunal also ruled that the bank staff were in fact employees and so there was an obligation to carry out collective consultation which had not happened. In reaching this decision, the Tribunal (focusing on the test case of Ms Smith) found that although there had been no written employment contract in place, there had been a continuing contractual relationship between Rollandene and Ms Smith and not just a series of contracts for each assignment. Ms Smith considered herself under an obligation to undertake a minimum amount of work under the control and direction of Rollandene and she believed she would have been required to give notice to terminate her contract.
Both providers chose to appeal this decision.
The Employment Appeal Tribunal (EAT) found that the Employment Tribunal had been wrong to find that there had been two TUPE transfers and noted the lack of explanation for this decision in the judgment. Specifically the Tribunal failed to explain how they had come to the conclusion that there had been business transfer i.e. an economic entity comprising of privately paying residents, or how this entity had retained its identity post transfer. It had also failed to explain how a service provision change had been made out i.e. who was the organised grouping of employees that had the principle purpose of carrying out nursing and care services to the socially funded residents.
However, the EAT agreed with the Tribunal that the bank staff did hold employee status and should have counted towards the employee headcount for the purpose of collective consultation. Despite this, the EAT found that the Employment Tribunal had made no finding as to whether there was a proposal to make redundancies. As such, there was no failure to collectively consult.
This case illustrates the complexity of sales and home closures and the importance of planning in advance and clear communication with employees. It also confirms a business should not automatically discount “bank workers” from being classed as employees without any further investigation into the working relationship regardless of whether there are contracts in place or not.
Ms P Jones (Formerly Gibbins) v Rebba Care Ltd [2023] – unfair dismissal and age discrimination
The Claimant was a senior carer who worked in a care home where there was often no manager present on shift. Due to her status as the most senior carer, the Claimant was seen as being in charge of the other members of staff.
The Claimant was dismissed following a series on incidents on 17 June 2022 which included the following:
(a) a number of residents suffered serious sunburn following a failure by staff to apply suncream. This followed a decision by the Claimant to bring the residents outside to enjoy the sunny weather;
(b) the Claimant had refused to provide personal care to a resident who suffered from incontinence issues and had requested to be changed; and
(c) a failure to assess a resident who may have had pressure areas/moisture lesions.
The Claimant was subsequently dismissed without notice. The Claimant unsuccessfully appealed her dismissal.
The Claimant brought claims against the Respondent for both wrongful and unfair dismissal, as well as a claim for age discrimination. The Claimant argued that the Respondent had not followed the correct disciplinary procedure such that the decision to dismiss her had been incorrect. She also argued that she had been unfairly held responsible for the detriment suffered by the residents because she was older than other members of staff on duty.
The Employment Tribunal considered the Claimant’s case and ultimately dismissed both her wrongful dismissal and age discrimination claims. The decision to dismiss had been taken on the basis that she had been the most senior member of staff on duty when these incidents had occurred. As the residents had come to harm under her watch, dismissal was appropriate and was not linked to her seniority and not materially influenced by age.
The claim for unfair dismissal was upheld however as the Respondent had failed to provide a clear disciplinary outcome or appeal outcome letter. It is imperative that an employee has a clear understanding of the reason for their dismissal rather than having to determine the reason from what has occurred during the disciplinary process or from other documents provided. As such, the Tribunal found that “the Respondent did not act reasonably in treating the reason they found as sufficient reason to dismiss”. However, the Tribunal were at pains to stress to the Claimant that there could well be deductions for contributory fault and Polkey due to her conduct at any future remedy hearing.
This case is a pertinent example of why employers should ensure that their outcome letters are clear when it comes to giving the exact reasons for dismissal, as even in a case where there is obvious gross misconduct, a poor outcome letter could render a dismissal procedurally unfair.
Secretary of State for Business and Trade v Mercer [2024] UKSC 12 – detriment for lawful industrial action
The Claimant was a support worker in the care sector as well as a workplace representative for UNISON. In 2019, the Claimant was involved in organising and participating in strike action following a decision by her employer to remove ‘top-up’ payments for sleep-in shifts. As a result, the Claimant’s employment was suspended for two weeks. During this period she continued to receive her normal wages but she did not receive any remunerations for the overtime she would normally have worked. The Claimant argued that this suspension amounted to detrimental treatment for the sole or main purpose of deterring her from taking part in lawful industrial action or penalising her for having done so.
The Employment Tribunal held that under the UK’s existing legislation, employers are prohibited from dismissing employees for taking part in protected industrial action, however there is no ban on subjecting employees to a detriment short of dismissal for having done so and therefore her claim failed.
This issue on appeal was whether the UK legislation is compatible with Article 11 of the European Convention on Human Rights (ECHR), which guarantees the right to freedom of assembly and the right for workers to form and join trade unions. The issue ended up all the way at the Supreme Court, which sided with the Claimant and held that the current legislation was incompatible with the ECHR.
As a direct result of this case, the Employment Rights Act 2024 will add to existing legislation and extend protection to workers to protect them from suffering a detriment of a prescribed description as a result of taking industrial action. Along with the additional expansion of rights for Trade Unions, providers should expect to see increasing unionisation of the social care sector. This in turn will mean that appropriately manging strike action and trade union activities may feature higher on the agenda for providers.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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